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Line 9: Supreme Court has sided with pipeline giant Enbridge over local Indigenous community’s opposition

Newly elected Chippewas of the Thames First Nation Chief Myeengun Henry beside the Thames River near Plover Mills Drive, where energy company Enbridge's Line 9 runs on Monday July 24, 2017. (MORRIS LAMONT, The London Free Press)

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The Supreme Court of Canada upheld Wednesday a previous court ruling allowing changes that will reverse the flow of crude oil along a controversial 40-year-old pipeline between Montreal and Sarnia.

In an unanimous decision , the court said the National Energy Board (NEB) acted properly in reviewing the written and oral evidence of Indigenous interveners.

“It assessed the risks the project posed to those rights and interests and concluded that the risks were minimal. Nonetheless, it provided written and binding conditions of accommodation to adequately address the potential for negative impacts,” the court said.

The decision is a bitter blow to the Chippewas of the Thames First Nation, southwest of London, that was the last group to stand up against the changes to Enbridge Pipelines Inc.'s Line 9, the pipeline that stretches across southern Ontario and through their community.

Chief Myeengun Henry put the country -- and Prime Minister Justin Trudeau -- on notice the First Nation will continue the fight against the pipeline it believes is a potential threat to waterways should it burst.

“I’m very insulted by the fact that they made this decision and now I’m rejuvenated in the fact that we’re going to continue the fight and that fight is going to take place directly,” he said.

“Canada, please know we are no longer your stepping stone and that we are going to fight for our rights. I hope Justin Trudeau understands this.”

Chief Henry, surrounded by community members, waits by the phone for the decision from the Supreme Court. pic.twitter.com/hQ0Ztw1Qi5

Vanessa Gray, an organizer with Aamjiwnaang and Sarnia Against Pipelines, a group that has campaigned against the Line 9 reversal, said she was frustrated and exhausted but not surprised.

“I think it's just that more obvious that Canada continues to inflict violence on our people and their land and our water, even in this day and age of so-called reconciliation from the Trudeau government.”

Gray said the opponents of the projects would not give up.

“It's still very much a fight for our land and water because there needs to be more action put into doing what's right and what's good for Indigenous people and our land.”

Sarnia Mayor Mike Bradley supported the Enbridge project, noting that the line was made to be reversible so that Canadians would have security of supply despite changes in world market conditions.

“In general terms, having a reversible pipeline was a very positive move for the industries and the companies that depend on this, and consumers.”

But he cautioned that Enbridge must ensure the pipeline is safe.

“The onus is still on them now to make sure that pipeline, after 40 years and with the reversal, will be safe."

The Supreme Court justices sided with the previous split decision from the Federal Court of Appeal that said Enbridge wasn't Constitutionally obligated to consult with First Nation communities before changing the existing pipeline, because none of that consultation was carried out when the pipeline was built.

Fears of environmental tragedy pushed the Indigenous community to take their fight to Canada's highest court after their case was dismissed almost three years ago in a split 2-1 decision at the Federal Court.

In a decision on separated but related case released the same day, the Supreme Court sided with an Indigenous community in Nunavut and ordered that seismic testing near the village of Clyde River.

The court upheld concerns that the testing to discover oil reserves could endanger marine life and violated treaty rights because of inadequate consultation.

The court also issued a stern warning that consultation process on Indigenous rights has to occur before projects are approved.

“True reconciliation is rarely, if ever, achieved in courtrooms,” the judgment says. “Judicial remedies may seek to undo past infringements of Aboriginal and treaty rights but adequate Crown consultation before project approval is always preferable to after-the-fact judicial remonstration following an adversarial process.”

In the Line 9 case, Enbridge, Canada's largest pipeline company, had gone to the National Energy Board to seek approvals to its project.

The Chippewas stood up, backed by Ontario chiefs, claiming that they hadn't been consulted adequately to allow the project to continue and that Enbridge was violating Section 35 of the Constitution that requires governments to consult with Indigenous communities about any industrial development that could affect their land.

The case was heard at the Supreme Court level after the majority decision of the Federal Court ruled that because the government wasn't part of the original application to build the pipeline, the National Energy Board wasn't required to find out if Indigenous peoples needed to be consulted to change it.

In 2013, environmental groups and Indigenous communities along the pipeline argued against the changes at hearings held by the National Energy Board. That included Aamjiwnaang, near Sarnia, where the pipeline has its end.

Critics have claimed the line has cracks and fissures that could break and spill crude oil into waterways, causing an environmental disaster.

Line 9 was built in 1975 and began moving crude oil in 1976. It was built to ship crude west to east, but has been moving it east to west since 1998.

The pipeline is expected to carry light crude oil but the pipeline can ship heavy crude such as diluted oilsands bitumen from Alberta.

Once the flow is reversed, it will increase to 300,000 barrels of oil a day, up from 240,000 barrels.